Duff v. Neilson

• Decision Date: 06 December 1886
• Citation: 90 Mo. 93
• Parties: DUFF v. NEILSON.
• Court: Missouri Supreme Court

90 Mo. 93

DUFF

v.NEILSON.

Supreme Court of Missouri.

December 6, 1886.

Error to circuit court, Morgan county.

A. W. Anthony, for plaintiff in error. Draffen & Williams, for defendant in error.

SHERWOOD, J.

Ejectment for block 29, in the town of Versailles. Defendant claims under a tax deed executed under the law of 1872.

1. It sufficiently appears from dates in the transcript that the motion for a new trial was filed within the statutory period, and this is all that is required.

2. Section 190 of the Laws of 1872 (2 Wag. St. 1198) required the collector to file with the county clerk a list of delinquent lands and lots at least five days before the commencement of the term at which application for judgment was to be made, and required the clerk to receive and record said list in a well-bound book, called the “Judgment Book.” That section also required the collector to attach to said delinquent list his affidavit declaring that the list was correct, etc.; that he was unable to collect the taxes on the delinquent lands; that such taxes remained due and unpaid; and that due notice of application for judgment and of sale had been given as required by law. This affidavit the clerk was to enter on record at the foot of the delinquent list against which the judgment was to be rendered. This section of the statute did not meet with compliance in this instance, and, of course, the county court had no valid basis on which its judgment for the sale of the land for taxes could rest. The object of that section of the statute in requiring the affidavit of the collector was to show that the notice of the intended judgment had been given. Without such notice, no valid judgment could be pronounced.

3. Moreover, the tax deed was void on its face. When first recorded it contained no statement as to the date when the special execution under which the property was sold, issued. The statute is express on this point, that the date of such special execution shall be given; and it has been ruled that this recital in the tax deed is essential, and its absence fatal. Williams v. McLanahan, 67 Mo. 499. And the complexion of this case is not altered for the better by reason of the fact that, when the omission of the date was discovered, the omission was supplied and the deed re-recorded, inasmuch as it does not appear who supplied the omission; nor does it appear that if the collector did make the correction, that he reacknowledged the deed before it was again put to record. If, as...